Advise and Consent (Also Obstruct, Delay, and Stymie)

Advise and Consent (Also Obstruct, Delay, and Stymie)

What's still wrong with the appointments process.

Five months ago, the U.S. Sentencing Commission achieved something remarkable. Chairman Richard Conaboy resigned, leaving the seven-member commission with exactly zero members. Since then, President Clinton has nominated no one to fill the empty seats. The commission still has more than 100 employees, $9 million to spend, and no authority at all over federal sentencing policy.

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Nor has the president nominated anyone to replace China Ambassador Jim Sasser, who returns home in May. According to MSNBC and the New York Times, at least six gray eminences, including former Rep. Lee Hamilton, former National Security Adviser Anthony Lake, and former Joint Chiefs of Staff Chairman John Shalikashvili, have turned down the job. The president did manage to send the Senate Richard Holbrooke's nomination as U.N. ambassador in February, eight months after the previous U.N. delegate left and eight months after Clinton announced he would nominate Holbrooke. Not that Holbrooke will be taking office any time soon: Sen. Jesse Helms, R-N.C., refuses to schedule a confirmation hearing for him till the administration agrees to Helms' U.N. reform package.

Holbrooke, at least, will get a hearing someday. In February, the president again nominated Bill Lann Lee as assistant attorney general for civil rights, a nomination the Senate has refused to consider for the past two years. Judiciary Committee Chairman Sen. Orrin Hatch, R-Utah, says he won't hold any hearing on Lee's nomination.

The appointments process is a perennial source of indignation for goo-goos. Even so, it seems particularly grim these days. There are different explanations for the various holdups above--the sentencing commission is empty because Democratic and Republican senators failed for months to compromise on a slate of nominees; Holbrooke's nomination was delayed by an almost-but-not-entirely meritless ethics charge; the Beijing job is difficult to fill because no one wants to defend Clinton's China policy to Senate Republicans, etc.--but together they suggest a process that is astonishingly screwed up.

The time it takes presidents to confirm nominees has soared in recent years: On average, it took Clinton more than eight and a half months to confirm his initial appointees, up from five months for Ronald Reagan and less than three for John Kennedy. According to ranking Judiciary Committee Democrat Sen. Pat Leahy, D-Vt., it now takes more than 260 days for the Senate to confirm a federal judicial nominee, up from 183 days in 1996 and only 86 days in 1994. One judge waited more than three years for confirmation. It takes eight to 10 months for the average ambassadorial nomination to be approved. The administration is overflowing with unconfirmed "acting" officials. A 1998 survey found that "acting" officials hold about 20 percent of jobs reserved for presidential appointees.

David Plotz is the CEO of Atlas Obscura and host of the Slate Political Gabfest.

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Some of this mess is to be expected. Filling positions is always a hassle during the last years of a two-term presidency: No one wants to chuck a good career for a lame-duck job. And a divided government inevitably slows confirmations: Republican senators are more skeptical of Clinton appointees than Democrats are.

But the screwiness of the process runs deeper, and almost everyone in Washington deserves a share of the blame. Clinton, especially early in his term, has taken endless months to nominate candidates for critical executive branch and judicial openings. The confirmation process has become massively politicized. "Elections no longer settle anything," says Colby College Professor G. Calvin Mackenzie, the leading authority on the appointments process. "What used to be the norm--that the president wins the election and appoints his people--is no longer. Now the losing party continues to fight through the appointments process."

A ll Cabinet-level appointees are now fair game for a confirmation challenge. The deference the Senate used to grant sub-Cabinet nominees is vanishing, too. Senators have increasingly deployed secret "holds" to delay confirmations, often for reasons having nothing to do with a nominee's qualifications. Helms, for example, held up numerous ambassadorial appointments to pressure Clinton to reorganize the State Department. Committee chairs also refuse to schedule confirmation hearings: Helms (again) derailed William Weld's nomination as ambassador to Mexico by refusing to let Weld testify. The confirmation process is "nasty and brutish without being short," as Anthony Lake quipped after his nomination as CIA director went down in flames.

The number of presidential appointees has multiplied--including judges, there are more than 4,000, five times as many as in Kennedy's time--making it difficult for the Senate to find time to consider everyone. Cumbersome ethics rules have made simply accepting a nomination onerous: Health and Human Services Secretary Donna Shalala had to pay accountants $20,000 just to complete her financial disclosure forms. Nominees usually have to give up their lucrative law practices and businesses as they await confirmation, a sacrifice that leaves them without income for months or years.

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It was not always this way. Until the late '60s, the Senate was deferential to the (many fewer) presidential nominees. It did much more consenting than advising. Abe Fortas' 1968 nomination as chief justice of the Supreme Court, which Republicans delayed to death, marked the first sign of change, but Robert Bork's 1987 Supreme Court nomination truly ushered in the era of appointments warfare. Since Bork, partisan interest groups and grandstanding senators have freely challenged even obscure nominees.

You can make a case that the appointments mess is more aesthetic than substantive. The Senate, after all, is apparently nearing a compromise on the sentencing commission, and the president will likely nominate seven new commissioners in the next few weeks. Holbrooke's U.N. nomination may be iced by Helms for a bit longer, but everyone agrees that he will be confirmed. The administration will find a China envoy. Lee has already been serving as acting assistant attorney general for 14 months. If the Senate refuses to hold a confirmation hearing, he will continue in that acting job till the end of Clinton's presidency. These are the exceptions: Most nominees are confirmed smoothly. And whether or not all the right jobs are filled with exactly the right people, the United States still manages to negotiate with China and the United Nations, the civil rights division still manages to file cases, and judges still manage to impose sentences.

But the rising obstructionism does damage government. Presidents, who are elected to remake executive policy, find themselves hamstrung. Career civil servants act in place of unconfirmed presidential appointees. The career folks are unwilling and unable to impose the policy changes the president may want. The president often skirts the law by appointing "acting" officials who "act" for years (such as Lee), depriving the Senate of its constitutional right to approve appointments. The eternal shortage of judges means that some cases are adjudicated peremptorily. The president--and this has been especially true of Clinton--frequently nominates the least offensive nominee rather than the most qualified in order to pacify the Senate. The endless obstacles to confirmation deter the best candidates: According to Mackenzie, the presidential personnel office must frequently offer a job to its fourth or fifth choice because the top candidates don't want to endure the inconvenience.

The goo-goos would cut the number of presidential appointments by a third or more, lessening the burden on the Senate and allowing the president to pick better candidates. They would eliminate senatorial holds. They would simplify background investigations and financial disclosures. These are promising and admirable ideas--modest solutions to a modest problem. Appointment and confirmation is a political process, and like any political process it will always be messy. But it doesn't have to be this messy.